iRARY OF CONGRESS. 




PRESENTED BY 

UlflTED STATES OF AMEEIOA. 






OF THE 



OPINION OF CHARLES O'CONOR, Esq., 



ON 



WHAT HE STYLES 



"TREASURY AGENT SYSTEM OF COTTON SEIZURES AT THE SOUTH:" 



ADDRESSED TO 



HON. HUGH IcCULLOCH, 

SECRETAR\' OP THE TREASURY, 



BY 



'i 



UGHES, DENVER & PECK, 

ATTORNEYS AT liAW^. 



WASHINGTON: 

1866. 






^^/, 



REA^IEAV. 



i 



To the Honorable Hugh McCullocit, 

Secretary of the Treasury. 

The Opinion of Charles O'Conor, Esq., concurred in by Messrs. James 
T. Brady, AVilliam M. Evarts, and Edwards Pierrepont, Esqs., of the 
New York bar, in support of a claim made by Dennistoun & Co. to certain 
cotton held by you as the property of the United States, having been 
addressed to you to induce you to surrender to said Dennistoun & Co. the 
cotton which they claim, we, who have been retained by you as counsel 
to assist the United States in the controversy pending in relation thereto, 
beg leave to present for your consideration the following review of the 
Opinion of Mr. O'Conor, and, incidentally thereto, also a partial examin- 
ation into the merits of the claim. 

We think we shall establish beyond controversy that so much of the 
legal matter in the Opinion as is sound has no relevancy to the real merits 
of the controversy, and that that portion of the legal argument which 
touches the subject is without the support of any legal writer or the de- 
cision of any judicial tribunal; that the statement of the case made to 
Mr. O'Conor, on which he has given the Opinion, and upon which he 
argues, is totally at variance with the facts, ascertained by the examin- 
ation of witnesses made under your orders, with a view to determine 
what merit there was in the claim of Dennistoun & Co. The singularity 
of such variance is remarkable, considering that the depositions have 
been seen and examined by Messrs. Pierrepont and Evarts, full opportu- 
nity to disprove the statements therein afforded Dennistoun & Co., and 
although they have put in affidavits on some points, yet have furnished 
none contradictory of the material the matters so proven. 



The case submitted to Mr. O'Conor, for his legal opinion, is thus set 
forth at page 2 of his Opinion: 

"Conformably to this practice, and on the twenty-sixth day of Janu- 
ary, 186G, one hundred and thirty-six bales of cotton, then in Savannah, 
Georgia, and held by Messrs. Wtn. Battersby & Co., of that city, on 
account of Messrs. Dennistoun & Co., of JSTew York, were forcibly seized 
by certain Agents of the Treasury under color of the acts in question. 
They have transported the property to New York, and are about to sell 
it at ])ublic auction. It is announced that after allowing to the actors in 
the affair such rewards or compensation for their services as may be 
thought fit by the Department, the residue of the proceeds will be paid 
into the Treasury of the United States." 

Nothing would be more agreeable to Messrs. Dennistoun & Co. and 
their counsel, than that they should be permitted to have the title of the 
United States to the cotton determined upon these facts. They have 
sought by every possible device to procure you to release the cotton to 
them. They commenced by enlisting in their cause a powerful array of 
legal talent, not leaving out of their calculations, as appears from some 
of the communications made in their behalf, the possible benefit to be 
derived from the capacity of the counsel emjiloyed to render eflicient 
service in another sphere than that in which a lawyer generally moves. 
You have been given to understand that, in case you should not prove 
sufficiently tractable under the ordinary application of logic and reason, 
other and more potential, though by no means so appropriate, means are 
placed at the disposition of Messrs. Dennistoun & Co. to which you must 
perforce yield your judgment. 

Nothing has been omitted by Dennistoun & Co. to insure success. 
There has been displayed ingenuity and skill worthy of a better case 
than they can make upon the merits. Y'ou may remember that the first 
report of the matter made to you was by one of that class whom Messrs. 
Dennistoun & Co. have induced Mr. O'Conor to join with the Keverend 
Heniy Ward Beecher to stigmatize and cover with obloquy and reproach — 
a Treasury agent. Had you have consented to decide the claim on such 
report, Dennistoun & Co. must have had the award in their favor. How 
it happened that the agent failed to report the facts now proven, which 
were for the most part notorious in Georgia, may be not worth ascertain- 
ing; but as the agents of Dennistoun & Co. and the Treasury agent 
appear to have established such close and friendly relations as to lead to 
the latter being entrusted with the warehouse receipts for the cotton 



which the United States have not been able to lay hands on, it would not 
be a hard problem to solve by what potent philtre the particular indi- 
vidual was rendered harmless. 

The getting up of the "Opinion" now before j^ou is another stroke of the 
same policy which has been evinced throughout, the secret of which con- 
sists in keeping out of sight the real parties to the controversy, conceal- 
ing the true condition of their case, and seeking to attain the desired end 
by all manner of means except the one so natural and so promising of 
success where the cause is just — the making of a fair statement of facts, 
supporting them by a candid exposition of the law, trusting to obtain 
thereby, what might well be expected, an impartial decision of the case. 
The same reticence of damaging facts which has marked the conduct of 
their case from the beginning is evident when they submit it to Mr. 
O'Conor, whereby they have induced him to expound the law upon 
points not in controvers}^, and to place himself in a position he would 
not willingly occupy, that of one who casts unjust imputations on public 
officials. Why confidence was not reposed in Mr. O'Conor, why he was 
not apprised of facts, known to at least two of the other counsel, mate- 
rial to be known to one who would wish, as no doubt Mr. O'Conor does, 
not to lend the authority of his great name to the propagation of un- 
founded accusations of a damaging character, nor to the maintenance 
before the head of a Department of legal arguments not relevant or 
proper to be considered, in the adjudication of a claim against the Gov- 
ernment, may be well understood by those who, knowing Mr. O'Conor, 
know that but for the suppression of such facts the Opinion had not been 
procured. But, as all the facts are in proof before you, sir, it may be 
said there could be no hope that you would be influenced by an opinion 
not based upon a true statement of the evidence. It may be that the 
pamphlet was intended to be used not as an argument before a capable 
and impartial tribunal, but as a "campaign document" in that war with 
which you have been menaced should you prove too stubborn to be 
moulded to the will of the practiced operators whose skill in making easy 
the sometimes difficult paths to the public treasury has given them a 
pre-emption of all cases which are to be won by diplomacy rather than 
by " sound logic supporting honest fact." The very title printed on the 
wrapper smacks more of the hustings than of the legal forum — " Opinion 



of Charles O'Conor, Esq., on the Treasury Agent System, of Cotton 
Seizures in the South." It comports well with a war waged against an 
intractable Secretary of the Treasury conducted after the guerrilla fash- 
ion — a blow to-day struck in the columns of a complaisant newspaper — 
to-morrow another hit in a lecture delivered in the "Church of the Pil- 
grims "—anon a resolution of inquiry, framed by the skilful hand of Judge 
Pierrepont, introduced in Congress by the distinguished Patriot from 
"Buncombe," who is stimulated to the attack by the inuendo that certain 
members of the Cabinet are fast friends of certain counsel who are em- 
ployed, and they favor the clients, who have had the sagacity to discover 
the pecuhar talent and influence of the counsel. Then, seeing that Den- 
nistovm & Co. are bankers and merchants, comes a blow from another 
quarter — Wall Street is aroused by the cry of "Eescue!" one of the 
chosen race is assailed — dire vengeance is threatened should the honest (J) 
claim of a brother be denied! Wo to the Loan Bill and its author, should 
he incur the hostility of those who keep, or think they keep, the kcj's of 
the whole treasure of the nation! What so promising, as a weapon of 
greatest power in such a war, as an "Opinion" given by the Bayard 
of the New York bar, in which the Messrs. Dennistoun & Co. will appear 
as victims of an iniquitous system of predatory warfare waged by men 
whose acts, done under color of your authority, are either trespasses, 
robberies, ov larcenies ? (Seepages 27, "Opinion.") Iso matter though 
the statement on which the "Opinion" is obtained be false, utterly at 
variance with what those who procured it knew to bo the truth of the 
matter, the blow has been struck; few will know that the weapon was 
poisoned with falsehood; the antidote which exists, and is to be found by 
those who search for it, will be discovered by but few. Money spent to 
produce a wrong public opinion may serve a better purpose than if em- 
ployed in securing legal aid in support of a claim known to be untenable 
by the ordinary methods resorted to where rights are sought to be recov- 
ered by the remedies afl'ordcd by law. For such a purpose it may be 
deemed judicious by a certain class of advisers not to take into full con- 
fidence an eminent lawyer whose eloquent disquisitions, uttered upon 
misconception, might be advantageously employed to debauch public 
opinion. In the attainment of such end, the mental reservation of the 



Jesuitical school might be usefully resorted to. The public would be 
misled, as well as Mr. O'Conor. 

Having denounced the imposition which was practiced in the framing 
of the case, which elicited Mr. O'Conor's Opinion, we will, by a bare 
recapitulation of the matters distinctly sworn to by the witnesses exam- 
ined, and not controverted by any evidence adduced by Dennistoun & 
Co., corroborated by historical documents connected with the war, and 
sustained, in important particulars, by letters of Denistoun & Co., estab- 
lish the justice of such charge. We state no inferences from facts, but 
the naked facts. We will discard any matter as to which a doubt exists. 

It is established that the cotton in question was purchased for account 
of Alexander Collie & Co., British merchants residing and doing business 
chiefly in England, the jiurehase being made in the State of Georgia 
after the rebellion broke out, and after the proclamation of the President 
of 1861, and after the passage of the act of Congress of July 13, 1801, 
prohibiting trade or intercourse with the insurrectionary States. The 
cotton was produced in Georgia; it was in that State at the time when 
General Johnson surrendered the forces under his command, and was in 
storehouses in certain places which were entered and occupied militarily 
by the Federal forces employed in reducing, under the power and 
authority of the United States, the said territories — disarming the hostile 
forces, whether forming part of regular organizations, militia, guerrillas, 
or citizens not organized or drilled, but yet armed to rejiel the efforts of 
the United States. For a certain period there was no other power in the 
State of Georgia having sway or control than that established by the 
military commander. A certain space of time was occujoied in securing 
to the United States, by means of military movements and military 
forces, the full fruit of what was agreed for by the terms of the Conven- 
tion made between General J. E. Johnson and General W. T. Sherman. 

During the period so referred to all property to which the United States 
became entitled by reason of the success of their arms, in subjecting to 
their sway the territory hitherto "enemy's territory," the military alone 
could effectually protect and enforce title thereto, but, owing to the urgent 
need of their services in putting an entire end to the rebellion and the 
suppression fully and entirely of all hostile acts, the military could not 
transport and carry to the loyal States the j)roperty acquired by the con- 



8 

quest of the territory in -which it was situated' — such as cotton, tobacco, 
&c. — and it was perforce allowed to remain in statu quo. 

Alexander Collie & Co., in the year 1862, entered into a contract with 
the so-called Confederate States, by which they undertook to build and 
equip a certain number of steamers for such Government, to be used in 
breaking the blockade established by the United States before the ports 
of the Southern States, and also to purchase and ship on such steamers, 
to be delivered at such ports, arms and materials of war for the use of 
said Government; the said Collie & Co. to bo part owners, with said Gov- 
ernment, of said vessels. The payment for said vessels and supplies was 
to be made in cotton, to be delivered in the said Southern States during 
the war at a fixed price. The said Collie & Co. executed said contract, 
ran several steamers under it, and imported the supplies agreed on, and 
received large amounts of cotton in payment. In addition to such im- 
portations, said Collie & Co. made others for their own account, which they 
sold and received payment in the Confederate Treasury notes. They 
equipped and ran steamers on their own account, bringing in stores for 
the Confederate States and also for the State of North Carolina, and 
general merchandise, which tney sold, as before stated, and invested the 
money in cotton. 

One William Collie, one of said firm, came to "Wilmington during the 
war, and resided there until the war closed. The firm of Alexander Collie 
& Co. had a mercantile establishment in the Confederate States during 
the war, through which they managed the steamers, sold their merchan- 
dise, and purchased and shipped cotton. A large amount of cotton was 
shipped through the blockade by said Collie & Co. during the war, but, 
owing to the fact that their receipts of Confederate currency, when in- 
vested in cotton, produced an amount far beyond the capacity of all their 
vessels to carry out up to the close of the war, there was a large accu- 
mulation on hand when the war ended. Some of this cotton said Collie 
& Co., by their agents, and with the aid of Dennistoun & Co., shipped ofi" 
to England when trade with the South was opened. The Treasury 
agents, not knowing the facts herein stated, did not oppose the same. 

In the month of March, 1865, Alexander Collie & Co. write to Batters- 
by, of Savannah, who had under their control and care all the cotton of 
said Collie & Co., (the lot specified in Mr. O'Conor's Opinion as well 



9 

as others,) giving directions as to the colton. Again, in the month of 
May, 1865, they write, informing Battersby that they have given David 
P. Sellar, of Dennistoiin & Co., a power of attorney to act for them "in 
respect to all their cotton in the Southern States." On the 20th day of 
May, 18G5, Dennistonn & Co. write to Battersby as follows: "Acting 
under a power of attorney from Messrs. Alex. Collie & Co., we have now 
taken entire control of all their cotton remaining in the South." Under 
date of November 1, 18G5, the Treasury agent, Dillon, reports as follows: 
"But to the point in this case. This cotton, claimed by Dennistoun & 
Co., was purchased by Mr. B. S. Dunbar for Mr. T. Andria. * * * * 
Mr. Andria sold the cotton to Mr. L. G. Watson, who, I understand, re2> 
resents Dennistoun & Co. of New York. This property was sold to Den- 
nistoun & Co. since the surrender," &c., &c. 

On the ISth day of October, 1865, Watson telegraphed to Edwards 
Pierrepont, Esq., as follows: "Mr. Dillon has been telegi-aphed to come 
here from Nashville. Secretary of Treasury has decided on confiscation 
of certain blockade cotton. Authorities here, on erroneous evidence, may 
decide to exclude Dennistoun & Co.'s purchase, notwithstanding the fact 
of Treasury jiermit being dated long before confiscation order. Obtain 
immediately orders from both Departments to suspend proceedings re- 
garding removal of cotton pending reference to Washington of full cir- 
cumstances." 

They file sundr}^ affidavits in support of their claim, but in none of 
them is it sworn by them or by others that they paid money for the 
cotton. This important element in a piirchase is omitted. Yet they seek 
to convey the impression that they purchased, and desire to be regarded 
as buying ivith a price under a permit. New affidavits have been lately 
filed, sworn to by Collie & Co. and their agents, which are strong enough 
on some points, but no word as to money being paid. It is shown nega- 
tively that Dennistoun & Co. did not make any purchase through Wat- 
son, of cotton at the South under alleged Treasury permits, unless they 
purchased the Collie cotton. It was claimed by Dennistoun & Co., when 
they filed their memorial, that they purchased the cotton in question of 
T. Andria. jVo word of Collie & Co.! It is shown that Andria was 
Collie & Co.'s agent, that, he left the country during the war, was not in 
the Southern States when the permit, as it called, was granted, did not 
2 



10 

own the cotton; consequently," the pretence of a purchase from An dria 
throuo-h "Watson was a deception; ergo the permit was obtained under 
false pretences, and was intended to be used as a cloak to get the cotton 
off. It fully appears that Dennistoun & Co. do not own, and have never 
in fliet owned, the cotton; that they arc acting for Collie & Co.; and the 
effort is to o-ive Collie & Co. such aid as it is supposed can he furnished 
by Dennistoun & Co. by reason of their being large bankers in the city of 
Kow York, as to whom, as with the King in England, it is by a fiction 
assumed they " can do no wrong." The panoply of such character it was 
supposed would prove a sure buckler of defence under which Alex. Collie 
& Co., the British merchants, who, in violation of the neutrality laws of 
their own country, became the allies of the enemies of the United States, 
and became active belligerents on the side of the rebel government, can 
realize the entire gains promised themselves as a reward for their hostile 
operations. 

It appears from the memorial of Dennistoun & Co. that when they 
commenced their "dealings and transactions" Avith Collie & Co.'s cotton, 
that simultaneously with the receipt of a letter of attorney from Collie 
& Co. to take charge of it, (as appears hereafter,) they retained Edwards 
Pierrepont, Esq., in the first instance, and a short time aftewards, Wm. 
M. Evarts, Esq., as their counsel! Why this course, so unusual among 
merchants about to engage in lawful trade, we are left to conjecture. 
The ostensible reason stated is that they wanted to i^rocure Avritten as- 
surances from your Department that the proclamation opening trade with 
the insurrectionary States meant what they aver they, after reading, under- 
stood it to imply— the entire removal of all restrictions; but they say 
they wanted further assurance out of abundant caution, and therefore 
procured the aid of counsel. They procured what they designate as full 
and satisfactory assurance in writing. Not satisfied, however, they 
caused two more journeys to be made to AVashington, and received two 
more assurances. All this preparation to purchase cotton is so unusual 
as to create suspicion that there was something more feared than mere 
"interference." By comparing the dates of their letters to Battersby, 
who held the cotton; taking notice that Watson, who was named by 
Judge Pierrepont as his cHent when the first paper was obtained, had 
been and was at the time in the employment of Collie & Co.; that the 



11 

object of the proceeding was the particular lot of cotton claimed by Collie 
& Co. ; that naturally enough great fears -were entertained that the Gov- 
ernment would seize the cotton; that AYatson had procured O'Fallon & 
Co. to ship a large amount of same cotton under a void permit, paying 
one-fourth therefor, it may be ' comprehended why the "dealings" (as 
Dennistoun & Co. designate what they insinuate was a purchase) were 
begun with so much caution. Counsel, the same now acting, were re- 
tained in the commencement, and have ever been appealed to as occasion 
arose. "Watson, the agent, when he hears of "blockade cotton" being 
seized, telegraphs, not to his pretended principal, but to Judge Pierre- 
pont! 

Dennistoun & Co., themselves British subjects, domiciled and carrying 
on trade in Now York, are to conclude what Collie & Co. partially accom- 
plished. Having stated the real condition of Dennistoun & Co., showing 
that they arc not what they wish to be considered, I'mrcliascrs of the cotton, 
since the close of hostilities, in good faith, under a Treasury permit, icithout 
notice of any illegality in the title of the former owner, it might be a full 
answer to all that has been said by them or in their behalf, and any dis- 
cussion of the title of the United States might bo properly postponed 
until CoUie & Co., the real plaintiffs, come into court to assert before the 
proper tribunal their claim to have delivered to them the fruits of their 
enterprise, conducted Nvith zeal and with a large measure of reward, but 
which can be considerably increased. It Avill be so only when some 
power, executive, legislative, or judicial, shall yield to some of the many 
artifices, contrivances, and schemes to influence their judgment, which the 
inventive genius of those who preside over the interest of Collie & Co. 
have put in operation, pronounces a decree, whereby Alexander Collie & 
Co., late allies of the Confederate States, and de facto enemies of the 
United States, are given free passage from the seat of the war to their 
warehouses in England for their cotton. 

It appears from the memorial of Dennistoun & Co., presented to you, 
praying a release to them of the cotton, that their operations respecting it 
commenced by an application which they describe as follows: 

"Early in the month of June, 1SG5, your memorialists having in con- 
templation dealings and transactions in cotton in the insurrectionary 
States, if such dealing could be safely entered into without danger to 
arise out of interference by Government restrictions, that in addition to 



12 

the perusal of the President's proclamation, in terms abolishing all such 
restrictions, your memorialists, for iurthcr assurance, and out of abun- 
dant caution, consulted with their counsel, Hon. E Iwards Pierrepont, of 
the city of JSTew York, and procured him to visit Washington to learn 
from the Treasury and the War Departments whether all restrictions 
were practically removed fi'om trade and intercourse in the said late in- 
surrectionary States, and to receive such assurance as the Departments 
Avere willing to give. That on the 3d day of June, 1865, the said counsel 
ofj-our memorailists, at a personal interview, received from the Secre- 
tary of the Treasury the fullest and most satisfactory assurances in 
writing as follows: 

'"Your client, Mr. Lewis Grant Watson, can purchase cotton in any 
State east of the Mississippi, and ship the same to New York or else- 
where, subject to the regulations of the Treasury Department without 
any other fee or demand whatever.' " 

They state that they subsequently procured Wm. M. Evarts, Esq., 
to proceed to Washington for the same purpose, and that within a period 
of a few days they procured two other similar assurances in writing from 
the same authority, notwitstanding they state the first was full and satis- 
factory. What induced this abundance of caution about a trade that 
other merchants had entered upon, relying upon the view taken by Den- 
nistoun & Co., upon a perusal of the proclamation, as removing all restric- 
tions in trade, remains to be seen. Wo think it will bo fully accounted 
for by the reasonable doubts engendered in their minds as to the legality 
of their contemplated transactions respecting the specific cotton which 
they had in view, and from no fears of any danger to a lawful purchase 
of cotton. 

It has been before brought to your attention by us that Dennistoun 
& Co. carefully abstain from averring positively and distinctly that they 
purchased the cottou. Their operations intended are defined as "trans- 
actions" — "dealings." If they were indicted for swearing that they 
purchased the cotton, they could not be convicted on the statements in 
the memorial. Yet the impression was created on the mind of the Sec- 
retary that a purchase was designed, as the paper given to them speaks 
of a purchase. So the memorial is so worded as to convey an impres- 
sion of the same kind. It required a good deal of art so to word the' 
memorial as to have Dennistoun & Co. regarded as a purchaser and 
accorded the advantages of such character, without exposing them to 
the risk of false-swearing. 

The Lewis Grant Watson spoken of in the Secretary's letter and in 



X3 

the memorial, is proven to have been the agent of Alexander Collie & Co. 
at Wilmington, during the war, and, since its close, employed as such in 
sending abroad, with the aid of Dennistoun & Co., cotton claimed by said 
Collie & Co., but belonging to the United States by right of capture. 

The fact that two counsel were retained in the commencement, and 
have ever since directed the operations; that when Watson, Collie's 
agent, saw trouble brewing, he telegraphed not to his (alleged) princi- 
pals, Dennistoun & Co., but to Judge Pierrepont, not for legal advice, but 
action in another quarter than that of the law — the Departments at 
Washington; all arc significant of the real character of the "dealings 
and transactions." The dread then entertained of what is now made 
light of by Mr. O'Conor, the appropriation by the United States of the 
cotton as lawful prize of war was the moving cause of so much fortifica- 
tion of their position, with the aid of the great guns of the New Yoz-k 
bar. 

We undertake to show that the Opinion of Mr. O'Conor ought not to 
weigh with you as an argument to induce you to give up the cotton to 
Dennistoun & Co. In order to disembarrass the discussion of all unneces- 
sary matter, we propose to pass over, without controversy, certain 
grounds upon which he relies to maintain the claim of Dennistoun & Co., 
which it is not necessary to dispute, as we conceive. We do not contro- 
vert the following propositions: 

First. That the act of March 12, 1863, and kindred acts mentioned in 
the Opinion, are war measures, and, so far as they direct captures, expire 
with hostilities. 

Second. That captures ex vi termini mean seizures jure belli, and can 
only be made in war. 

Third. That captures can only be made by the military, and that the 
act of March 12, 1863, does not empower Treasury agents to make them. 

By guch disposition of the propositions stated, it becomes unnecessary 
to refer farther to the contents of the first twenty pages of the Oi^inion, 
taken uj^ exclusively with arguments in their support. That portion of 
the work may be remitted to such use as the counsel of Dennistoun & 
Co. may design it for, such as sending it for the perusal of bankers and 
merchants, and others, who, because they find that Mr. O'Conor has em- 
ployed his time and talents in proving the matter, -will naturally suppose 



14 

your action in the premises stands on such illegal assumptions as are 
ascribed to jon, and be made excessively indignant by the eloquent de- 
nunciations, by Mr. O'Conor, of illegal acts never performed. 

Mr. O'Conor is equally wide of the mark when, in casting about to 
find on what possible ground the United States claim the cotton, he 
ascribes to it the Non-intercourse Law of 18G1 or the Confiscation Act 
of 1862. Both laws may be invoked as aids to the interpretation of the 
law on which the title of the United States rests for support, but it is not 
derived directly from either. Neither is the property claimed to be 
"abandoned" within the sense of the laws which command the seizure 
of all such property as may fall within the definition given of " aban- 
doned property" — although the law on such subject will be of use to aid 
in deciding the question whether the United States is entitled to the 
cotton under another head of the laws of war. 

Mr. O'Conor begins at page 24 of this argument to approach the qu.es- 
tion which is necessary to be decided before one, to whom the title of the 
United States is submitted, can proj)erly determine it. lie asks, "Can 
the property be claimed under some head of capture as prize of war?" 
and, after quoting the Confiscation Law of August 6, 1861, he continues 
thus: "It is not understood that the Treasury pretends to have any evi- 
dence tending in the slightest degree to bring this property within the 
operation of this act." It would be, no doubt, well for Dennistoun & Co., 
could they dispatch such portions of the evidence as connects the cotton 
with the rebellion as satisfactorily as has Mr. O'Conor in the paragraph 
quoted. Unfortunately for them, there are damning proofs that it was 
used in the manner defined in the law. 

The right of the United States to treat the cotton as booty of war, is 
sought to be disposed of upon the authority of cases Avhich settle thai no 
capture can be made after peace. The question is one so simple in itself 
that it would seem that Mr. O'Conor need not have done more than to 
state it. No one would question it. Having, with a useless expenditure 
of time and quotation of authority, established such proposition, Mr. 
O'Conor seeks to give it an application altogether opposed to common 
sense; he applies it where no analogy can be traced to the principle set- 
tled. He asserts that because after peace no capture can be made, that, 
by parity of reasoning, a victorious General operating in an enemy's 



15 

country cannot appropriate any booty upon which he has not laid hands 
and taken actual physical possession of durante hello. In support of this 
assertion, he quotes two decisions as being in point and conclusive in his 
ftivor— Erown vs. The United States, 8 Cranch, 147, and Nuestra Senora 
de los Dolores, Edw. Adm. Eep. G2. 

The Opinion in the former case distinctly decides against the capture 
because, that the property was found in the United States at the break- 
ing out of the war and no law had been passed by Congress directino- its 
confiscation; that according to the laws of nations it mio-ht be done but 
was not deemed an act of good faith; that it did not become forfeit ipso 
facto by the breaking out of the war, and differed entirely from a cap- 
ture with which it was contrasted. The same prinei^Dle governed the 
case in Edwards. The fact that the Crown had not seen fit to seize the 
property during the war was deemed equivalent to a declaration of an 
intention not to deal with it as confiscable — a fortiori it could not be 
taken after peace as no war, no enemy — no enemy, no enemies' prop- 
erty to capture. 

Understanding the argument of Mr. O'Conor to lead to the conclusion 
that peace put an end to the right of a successful commander to collect 
and appropriate the booty to which he acquired title by ca:^invQ jure belli 
because it was (being situate in "enemy's territory") by such predicament 
lawful boot}^, and remains in the territory still held by such commander 
when peace is declared, we den}^ such to be the law of war, and affirm 
that history shows the usage to be different — that no case can be found 
to sustain such argument. 

What was the predicament of the property when the State of Geor"-ia 
was taken militaiy j)OSsession of by the United States? It was precisely 
similar to that of Mrs. Alexande^''s, the condition of which is declared by 
the Supreme Court, in 2 Wallace, page 404, to be such as made it 
lawful subject of capture. There is no difference, except the notable 
one, that whilst Mrs. Alexander was deemed an enemy by the presump- 
tion arising out of her mere residence in enemies' territory, Collie & Co. 
are proven to have been de facto enemies, aiding in carrying on hostilities 
against the United States, having a house established in the enemy's 
countr}' purposel}'- to aid them, and that the cotton was purchased in 
furtherance of such purpose. 



16 

But, says Mr. O'Conor, the property of an enemy on land is not liable 
to capture, and to support this he relies on what he calls modern public 
law! There is a contradiction in the very term employed — public law, 
that which is alone recognized as obligatory, has become to be regarded 
as such by reason of its antiquity, by some jurists being said to be founded 
on the laws of Nature, and to be traced back to the days of Abraham. 
Modern usuage has, when meeting the approval and consent of belliger- 
ents, been adopted, whereby many of the rigorous practices of ancient 
times have fallen into disuse; others are yet continued or not, as belliger- 
ents may see fit. It is so with respect to captures on land, which by some 
are confined to public proj^erty, but not by all, and certainly not by the 
United States during the rebellion. The Supreme Court affirm the right 
under the laws of war to make such captures, and declare that Congress 
by its legislation has directed it to be employed in respect to certain pro- 
ducts of the Southern States. — Mrs. Alexander's Cotton, 2 Wallace,]). -i^^. 

This point being settled against Mr. O'Conor's argument by such au- 
thority, let us refer to a case decided before the Privy Council in England, 
whose judgment was delivered by that eminent lawyer, Lord Tenterden, 
wherein the other position of Mr. O'Conor — that booty captured jure belli 
cannot be secured and taken away after hostilities cease — is upset. The 
case was one where the Crown brought suit to recover a sum of money from 
a banker, with whom it had been deposited by a native prince with whom 
Great Britain had waged w^ar. The prince was governor of a town cap- 
tured by the British forces; the money was in the town when it was 
captured. After hostilities ceased the town and adjacent- territory being 
treated as a conquered country, a provisional government was established 
over it, and a court of general jurisdiction created therein. The suit was 
brought in this court, of course after all hostilities had ceased and peace 
reigned undisturbed. The defence relied on the doctrine set up by Mr. 
O'Conor, that after peace no claim to booty not secured in war could be 
maintained. The defence was overruled, and the right of the Crown 
sustained. 

All the Authorities cited by Mr. O'Conor in support of his proposition 
are foreign to the true question, as has been shown in commenting upon 
them. The assertions made by him as to the law of blockade Avill be 
found equally without support. He affirms that a blockade runner is not 



17 

by the laws of nations guilty of any offence which subjects him to pun- 
ishment, his only risk being that of the capture of his vessel and cargo, 
the limits of which he defines. The cases cited to sustain the position 
are all decided vipon questions touching contraband of war carried by a 
neutral to a belligerent's port not blockaded. He attempts to establish a 
strict analogy between the conduct of a neutral carr3'ing contraband of 
war, and a neutral violating a blockade. There is none. The writers 
on the laws of nations declare that a neutral breaking a blockade may 
be treated as an enemy; the United States so dealt with them. They 
were imprisoned Avithout remonstrance from their Govornments. 

Carry out Mr. O'Conor's argument to its full extent, and where does it 
lead? He limits the right to capture of the property employed in run- 
ning the blockade to the high seas, and to the voyage to and from the 
blockaded port. If this be the utmost limit of the rights of the belliger- 
ent whose right is violated, then it follows that merchandise landed at 
Wilmington during the blockade, and cotton purchased and held there 
at the same time prepared to be loaded on the steamers employed as 
stated, would be forbidden to be seized by the United States when the 
Federal forces entered the city. If this be so it follows that the success 
of the Federal arms serves to free Collie & Co.'s cotton from the risk it 
would have necessarily incurred in going out through the blockade; its 
value is increased incalculably by the Federal victories, and the army of 
the United States gives them more efficient protection than Fort Fisher 
or confederate gun-boats ! The ultimate destruction of Collie & Co.'s 
allies, the Confederate Government, will be an incalculable advantage to 
Collie & Co., one they may well have prayed for to happen speedily if 
they felt confidence in the law as stated by Mr. O'Conor. Can it be 
seriously argued by an}^ man, lawyer or layman, that the laws of war 
hold out such inducements to neutrals to engage in a trade which 
the sovereigns of Europe, by express proclamation, warn their subjects 
not to engage in? What a spectacle for the gallant victors of Fort 
Fisher to witness — Collie, the blockade runner, who had supplied the 
guns and ammunition which laid low their comrades on the ramjDarts of 
the fortres.s, sailing defiantly out of the harbor, with their swift steamers 
loaded with cotton worth millions, protected by the laws of war as main- 
tained by Charles O'Conoi-, Esq. They would, no doubt, when they 



18 

•were told of the argument, exclaim in the language of the grave-digger 
in Hamlet, "'tis crowner's 'quest law." The same success, following the 
defeat and entire overthrow of the cause they espoused, is claimed to be 
the due of Collie & Co. What the arms of the United States has left un- 
accomplished, the courts, the bar, and, if need be. Congress and the Cab. 
inet, are to be employed to complete; the maxim, "to the victors belong 
the spoils" is to be read so as to confer them on the vanquished. 

But Mr. O'Conor should be informed that Alexander Collie & Co. are 
not mere blockade-runners, in the ordinary acceptation of the term — 
they were not merchants engaged in the venture of running merchandise 
through a blockade — they were something more; they were belligerents, 
enemies of the United States, allies of the Confederate States, who en- 
tered the States in rebellion, in violation of the law of the land, to aid 
and abet the rebels. The acts done by them, if known and sanctioned 
by their sovereign, would give the United States just cause of war ; but, 
by the laws of Great Britain such conduct is declared to be a crime, and 
punished severely. Had they been captured by the United States, they 
could have been imprisoned, and that without even the right of exchange 
gecured to those taken in battle. Yet we find Collie & Co. dragging the 
United States, as defendants, into a State court, by means of a writ of 
replevin obtained by the friendly aid of their countrymen domiciled in 
New York. We see them enlisting in their behalf a powerful array of 
legal talent, combined with great political influence in the same persons. 
We are told to beware how their claim is decided, for they have more 
powerful support placed at their command by the powerful combinations 
they have formed, and unpleasant personal results may occur to those 
who deny their demands ! Eifrontery such as this has never been recorded 
in history! Why they have not enlisted in their behalf the diplomatic 
representative of their nation, rather than resort to the aid of the public 
functionaries of the United States, may readily be understood by those 
who are informed that the trade in which they engaged is outlawed by 
the Queen's proclamation, and no court in Great Britain would entertain 
a suit growing out of it! 

The appearance in a court of the United States of one who has been 
but recently engaged in aiding its enemies in carrying on a war to destroy 
its existence, who furnished the means to destroy the lives of their soldiers, 



19 

moved by no interest in the c[ucstion about which the contest arose, gov- 
erned alone by the hope of gain, botmd by law and the doctrines of the 
Christian religion to abstain from a conflict in which his Government was 
a neutral — the coming before the judicial tribunals of this country of 
such a person, seeking to compel the United States to surrender what 
was won by its arms during the war, is a novel spectacle. That such 
action does not arouse just indignation may seem surprising, but it need 
no longer be wondered at when it is seen how well the real suitor has 
hitherto concealed himself under the convenient cloak of his fellow- 
countrymen, whose neutrality has not been departed from, so far as we 
know. But it may well excite surprise, if no stronger feeling, that citi- 
zens of the United States of eminent positions, to Avhom the true claim- 
ants are known, and who are aware of their acts of hostility to the 
United States, should not only contribute their aid to enable them to 
deprive the Government of its property — should endeavor to subject the 
United States to the condition of defendants at the suit of such men as 
Dennistouu & Co., represented in the suit — but more than all, go about to 
misrepresent and bring into contempt such officers of the Government 
and citizens as cannot be induced by intimidation or persuasion to sur- 
render to Collie & Co. what rightfully belongs to the United States. 

We conclude by saying that, in our opinion, the claim of Dennistoun 
& Co. is utterly without merit, anything in Mr. O'Conor's argument to 
the contrary notwithstanding. 

HUGHES, DENVEE & PECK. 



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